State v Nand [2010] FJMC 73; Criminal Case 865 of 2008 (22 July 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 865/08

BETWEEN

THE STATE

AND

ASHNIL NAND

JUDGEMENT

1. The accused in this case is charged with one count of Rape.
   
2. The statement of offence and the particulars of offence as follows;
   

The statement of offence

Rape; contrary to section 149 and 150 of the penal Code

Particulars of offence

Ashnil Nand s/o Birja Nand, on the 29th day of July 2008 at Lautoka in the western Division had unlawful carnal knowledge of Miriama Lutuiqele without her consent.

BACKGROUND

3. The offence was allegedly committed on the 29th July 2008. The accused was charged on the 01st December 2008. The case was taken up for trial on the 23rd march 2010.
   
4. The prosecution was conducted by a Police prosecutor and the accused was unrepresented. Five witnesses were called for the prosecution and after the prosecution case it was held that the prosecution has made out a case sufficiently requires the accused to reply. The accused did not give evidence or call witnesses.
   
5. The complainant was 14 years and the accused was 18 years when the alleged incident happened. The accused admitted the offence in the caution interview and he did not challenge the caution interview at any stage.
   

THE LAW

6. Section 149 of the Penal Code reads as follows:
   

Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

7. Section 150 of the penal Code reads as follows;
   

Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.

ANALYSIS

8. The prosecution called one witness named Aniketh Abishek Sharma to give evidence. However the evidence of the complainant as well as the evidence of this particular witness revealed that he is nothing less than an accomplice of the alleged incident. I do not see any reason as to why he was not charged by the police on the available evidence. Be that as it may, at the very out set it should be noted that I decided to disregard the evidence given by this witness, Aniketh Abishek Sharma in fairness to the accused.
   
9. The complainant said in evidence that on the 29th July 2008 she went to one of her classmates, Abishek's house to prepare for the exam. She said she went to his house around 5 pm. She said that they finished studies at about 7 pm and Abishek's mother told Abishek and the accused, Ashnil to go and drop her home. She said on the way Avinesh was playing around her and was hugging her and touching her backside. The complainant said that the accused asked her to go to the sugar cane field. She said she refused.
   
10. She said then Avinesh forced her to go and pulled her hands. She said Avinesh dragged her in to the sugar cane field. She said Abishek was laughing when she was dragged by the accused. The complainant said in the sugar cane field she was pulled down and Abishek closed her mouth. She said then the accused pulled her pants and the underwear down. She said then the accused took out his penis and put it inside her vagina. According to the complainant the accused after having sex for about 5 minutes took out the penis and spread sperms on her dress.
    
11. She said during this time Abishek was covering her mouth with his hands to avoid her make any noise. She said she cried for help but Abishek was holding her mouth. After the accused got up she said she too got up and wore her cloths. She said she came home and the accused and Abishek came after her. Before she reached her house she said that they told her not to tell any one about the incident. She said when she came home she didn't tell her mother as her mother was with her cousins. She said she saw her underwear stained with blood. The complainant said she was afraid to tell her mother and the following day she told it to a friend in school and then to a teacher. Finally she said that;
    

"I felt ashamed after I was raped. I was frightened. I could not score the marks I wanted to get at the exam. I don't go to school now. This is one reason and the other reason is my school fees. (the witness is crying) I cry because I can't go to school. It's because of this incident and my mom cannot afford anything."

12. The accused cross examined the complainant. He suggested to the complainant that she came to the sugar cane field with her consent and he didn't force her. However she denied the suggestions and then the accused asked why she didn't report the matter to the police on the following day. She said that when she reported the matter the accused ran to Ba and she said the incident happened on Wednesday and the matter was reported on Friday. In answer to a question by the accused she said that the accused's father came to her place and asked her to marry him and if not he had offered money to her step father.
    
13. It should be noted although the accused cross examined the witness her credibility was not shaken by the accused. I have noticed her giving evidence with lot of confidence and in a very impressive manner. Although the accused suggested that she went to the cane field with her consent, he did not at least suggest that she consented to sexual intercourse.
    
14. The prosecution called Abishek's mother, Sneh Latha and she said on the day of the incident the complainant came to her house and later her son Abishek and the accused were told to drop her at her place. She said although it does not even take five minutes that day it took about 15 minutes for them to drop her. She said that she saw the accused and the complainant were holding hands at her place. It appears that the accused was staying at this witness's house at the time this incident took place. The accused did not cross examine this witness.
    
15. The medical officer who examined the complainant was also called by the prosecution. She said that she examined the complainant on the 13th August 2008. She said the complainant was calm out side but she was frightened inside. The medical officer said her hymen was not intact but she did not observe any external injuries. She further went on to say that the complainant was not produced to her soon after the incident and only within about 72 hours lacerations or other injuries can be seen.
    
16. It appears that the complainant had been medically examined nearly two weeks after the incident. The accused was arrested five months after the incident. The prosecution did not provide any reason for the delay in taking steps in this case. It has to be noted that at least in cases where children and women are involved the Police should take steps promptly and efficiently. The delay in investigations and delay in producing victims for medical examinations could hamper prosecutions irreversibly.
    
17. Further the medical officer who examined the complainant said that she recommended counselling for the complainant. But nothing revealed whether she was indeed directed for any counselling. Although the management of the victim may not appear as a significant issue as long as the mere prosecution of the accused is concerned, I note that it is the duty of the prosecution to be mindful of the victim's rights as well. Further I emphasize the need to sensitize Police officers and prosecutors in cases relating to children and women.
    
18. Be that as it may, the prosecution called PC 3048 Salesh Kumar, the Police officer who recorded the caution interview and tendered the caution interview as evidence. The accused requested the caution interview to be translated in to Hindi language. After it was translated the accused said he has no questions to ask. Therefore it appears that the accused has not challenged the caution interview too. The accused has admitted the offence in the caution interview.
    
19. After the prosecution case, the accused was explained his right to call witnesses or to give evidence but he did not call witnesses or gave evidence. He remained silent.
    
20. In a criminal case an accused person need not produce evidence to prove his innocence. It is the duty of the prosecution to prove the commission of the offence beyond reasonable doubt. Therefore it has to be ascertained whether the prosecution was able to discharge the burden of proof.
    
21. As far as the evidence in this case is concerned it appears that there is no dispute with regard to the date and time of the alleged incident. The identification of the accused was also established by the prosecution without any doubt. Even the accused did not dispute the fact that that there was sexual intercourse with the complainant.
    
22. His only contention was that he did not use force on her and that he did not take her in to the cane field without her consent. Although the accused suggested that the complainant came to the cane field with consent, the accused didn't mention any thing about the act of rape. When the accused cross examined the complainant he disputed the fact that he used force to take her in to the cane field. How ever the complainant strongly denied that and said that she was dragged in to the cane field.
    
23. As it was mentioned earlier the demeanour of the prosecutrix was very impressive and her evidence was very convincing. Her evidence was not vague or inconsistent and the accused could not attack the credibility of the complainant at any time. She said that the accused did insert his penis in to her vagina without her consent. Further she said the accused did so while Aniketh Abishek Sharma was covering her mouth. The medical evidence corroborated that her hymen was not intact. I cannot imagine any reason on the evidence available, as to why the complainant would fabricate a story against the accused. At least the accused did not even suggest that there are reasons to fabricate a story against him.
    
24. The only issue the court has to consider is whether she consented or not. As far as the evidence of the complainant is concerned I am satisfied that the accused had intercourse without her consent and by using force. I accept the evidence of the complainant without any doubt.
    
25. Thus I am satisfied that the prosecution has proved the charge against the accused beyond reasonable doubt. I find the accused guilty of the offence. Accordingly I convict the accused for rape contrary to section 149 read with 150 of the Penal code.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
22.07.2010